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Wednesday, January 28, 2009

Business Owners Beware: Liability Releases for Children Not Enforceable in Court

If you are a business owner who allows minors to engage in commercial activities with a signed parental pre-injury release, you may still be at risk for a potential lawsuit.

Last month, the Florida Supreme Court, in a 4-1 decision [Kirton v. Fields, 2008 WL 5170603, 33 Fla. L. Weekly S939 (Fla. Dec. 11, 2008)], ruled that liability releases signed by a parent on behalf of a minor are unenforceable against the minor child or minor’s estate in a tort action arising from injuries resulting from participation in a commercial activity.

In Kirton v. Fields, the parents of a 14-year-old boy were divorced and the father was the primary residential parent. Father and son went to a sports track to ride their ATV.  In order to use the facility, the father, individually and on behalf of his son, signed a release and waiver of liability, and an indemnity agreement. While operating the ATV, the son lost control, was ejected from the ATV and died. The personal representative of the child's estate filed a wrongful death action against the owners and operators of the sports track. The defendants' answer included the affirmative defense that the claims were barred by the release and waiver executed by the father on behalf of his son.

The Supreme Court concluded that a parent could not bind a minor's estate by executing a pre-injury release. The court found that if pre-injury releases were enforced in court, businesses would be free of liability, and would have little incentive to take reasonable precautions to protect the safety of children who use their services. This ruling directly affects business owners.

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